Celebrities have a legal right to prevent the commercial use of their images without permission. But are they silencing artists and satirists as well?
''HOLLYWOOD," MARILYN MONROE famously said, ``is a place where they'll pay you $1,000 for a kiss and 50 cents for your soul."
In fact, they won't pay you anything for your soul in Hollywood. And these days $1,000 would barely fetch an air kiss from an A-list movie star. But if you want to sell a trivia board game mentioning Marilyn Monroe, or place an ad showing a woman-any woman-in a white dress that's billowing up in a subway grate updraft, you'll probably need to pay a fee to Monroe's estate. Otherwise, you'd be infringing on her ``right of publicity."
Americans moderately well acquainted with today's constitutional debates-over abortion, for example, or eavesdropping-have some idea of what courts mean by privacy rights: the right, in Louis Brandeis and Samuel Warren's phrase, ``to be let alone." The right of publicity, on the other hand, seems far-fetched. Andy Warhol's ``famous for 15 minutes" prediction notwithstanding, how can publicity be a right?
But the right of publicity is not the right to be famous, it's the right to control-and profit from-the commercial uses of one's persona. According to Mark Lee, a lawyer who has represented clients like Tiger Woods, Barbra Streisand, and Sylvester Stallone in right-of-publicity and other intellectual property cases, the right of publicity is essentially a protection against ``other people making money off of you without your permission."
Although formally recognized in 28 states, including Massachusetts, publicity rights remain controversial. A lawsuit that a company called CBC Distribution and Marketing recently filed against Major League Baseball shows why. It involves fantasy baseball, a game in which participants compete against each other in mock online leagues, drafting and managing teams using the statistics of real major league players. CBC runs a league and contends that it shouldn't have to seek permission or pay a fee to use baseball players' names along with their statistics. Major League Baseball disagrees, citing the right of publicity.
If the question of who owns a batting average has a koan-like quality to it, that's to be expected in right-of-publicity jurisprudence. Landmark decisions have involved Bette Midler's voice, Vanna White's letter-turning, the pitcher Don Newcombe's wind-up, the phrase ``Here's Johnny," and, in the sole Supreme Court right-of-publicity case, a human cannonball's circus routine.
Despite the hint of the surreal, litigators and legal scholars take such cases quite seriously, since what's at stake is the boundary between free speech and property rights. Some worry that publicity rights have already expanded too far, allowing celebrities unilaterally to dictate how the rest of us can portray them. Others respond that it's simply the law's reasonable recognition of the economic value of celebrity. The issues and arguments can be similar to those in trademark and copyright cases. In a unique way though, right-of-publicity disputes are also about fame-who owns it, and what it's worth.
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Publicity-rights cases don't always involve famous people. In fact, before the mid-20th century, they usually didn't. One of the earliest was a 1902 lawsuit brought by a young woman named Abigail Roberson against a company that without permission had used her portrait in a series of flour advertisements. The New York Court of Appeals ruled against Roberson, saying that the state had no law protecting against the appropriation of a person's image. But promptly thereafter, the state Legislature passed just such a law (as did Massachusetts).
Even though these laws are still on the books, and form the basis of today's publicity rights, they were in fact understood to be protecting privacy rights. According to F. Jay Dougherty, a professor at Loyola Law School with wide experience in entertainment law (the field where such cases most often arise), the thinking was, ``If someone takes my face without my permission and puts it in an ad, it's like invading my bedroom or my space, especially if it's an ad for something I don't approve of."
Celebrities, since they were public figures, actually had a hard time winning such ``commercial appropriation" cases. As Diane Zimmerman, a professor at New York University Law School, puts it, ``it's awkward to claim that your privacy is being infringed by the use of your name or your face when you make your living through the use of your name and your face."
This all changed in 1953 with a case called Haelan Laboratories v. Topps Chewing Gum-another case arising out of baseball merchandising. Haelan, which despite its name was also a chewing gum company, had signed major league baseball players to exclusive contracts to use their photographs on baseball cards. Topps then signed contracts with some of those same players for baseball cards of its own, and Haelan sued. In court, Topps argued on right-of-privacy grounds that Haelan's exclusive contracts were essentially meaningless: The players, in agreeing to have their images on baseball cards in the first place, had relinquished their privacy rights and freed up their images for public use.
The Second Circuit Court disagreed and, using the phrase for the first time, asserted an independent ``right of publicity"-not the right to protect one's privacy but the right to control one's fame, and in particular how it's monetized. According to Stacey Dogan, a professor at Northeastern Law School who, like Zimmerman, studies intellectual property and free speech issues, the right of publicity had been transformed from ``a right that was associated very personally with an individual to more of a purely economic and alienable right-something that can be sold to third parties and used by those parties in ways that maximize the economic value of the fame." Subsequent decisions reinforced this model of a public persona as a property right. In many states, for example, it can be passed down to one's heirs-the persona in effect outliving the person.
According to Mark Lee, this is as it should be. ``Our culture values celebrity, that's just a commercial reality. The question is who should be able to make money off of that celebrity. Should it be the individual or his or her family? Or should it be a stranger, whether it's a small entrepreneur selling T-shirts or multimillion-dollar media conglomerate? It ought to be the individual."
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Still, several First Amendment scholars see this shift as troubling. ``There needs to be a really strong reason for someone to be able to make a property or quasi-property claim to information," says Zimmerman, especially if that information is something as ingrained in the public consciousness as a celebrity's likeness.
Zimmerman cites a 2000 lawsuit Tiger Woods brought against the sports artist Rick Rush for selling prints of a painting he had made of Woods winning the Masters, and another suit brought a year later by the heirs of the Three Stooges against Gary Saderup, an artist who had done charcoal sketches of the slapstick trio, then put them on T-shirts and lithographs. ``If somebody wants to start drawing pictures of Tiger Woods or the Three Stooges because they find them interesting or somehow inspirational, or want to make fun of them or use them to make fun of someone else, I think it's worrisome that anyone can prevent that by saying, `I'm in control of how anybody presents me to the public,"' she says.
Daniel Siegel, legal counsel for CMG Worldwide, a firm representing hundreds of celebrities living and dead, sees fears like Zimmerman's as unfounded. The vast majority of right-of-publicity claims, he points out, involve advertising and merchandising. As for journalism, political campaigning, works of art and literature-forms of expression in which one might want to make a larger political, philosophical or aesthetic point-they're protected by the First Amendment.
``There are always very well laid-out exceptions to the right of publicity," Siegel says. ``There are First Amendment exceptions if you want to do a Time magazine cover on someone, or the unauthorized biography of Babe Ruth."
As in many difficult legal debates, though, the trouble starts when one has to define the terms. Some of the best-known right-of-publicity cases, for example, have been about what exactly constitutes a celebrity's persona, and how broadly she can control it. In 1993, Vanna White won a decision against Samsung Electronics for a commercial that she claimed had appropriated her identity by showing a robot in a blond wig and a cocktail dress turning letters on a futuristic game show. A decade earlier, Johnny Carson sued successfully to stop a company from selling Here's Johnny Portable Toilets, with the court in that case extending right-of-publicity protection to an introduction (even though it was Ed McMahon's line).
In the fantasy baseball case, Major League Baseball is hoping to make a similar case, arguing that a player's persona inheres even in the pairing of his name and his statistics on a commercial website. CBC, of course, disputes that, insisting that its use of player information is no different from what one finds in newspaper box scores.
Just as thorny is the issue of what, exactly, makes for a constitutionally protected use of a celebrity likeness. Many states apply a standard called ``transformativeness": The more one reworks a celebrity's likeness-especially if it is in a way that implies criticism or mockery-the more likely the result is to be an original work of art rather than mere appropriation. But transformativeness, of course, is in the eye of the beholder. Rick Rush's paintings, for example, are painstakingly rendered copies of news photographs of famous sports moments. It's hard to argue, therefore, that they're more transformative than charcoal renderings of the Three Stooges. But Tiger Woods lost his suit against Rush, and the Stooges' heirs won theirs against Gary Saderup.
Where an expression appears, of course, can complicate the calculation. In the Stooges case, the question is how we classify a T-shirt. ``T-shirts are hard to categorize," says J. Thomas McCarthy, a professor at the University of San Francisco Law School and author of ``The Rights of Publicity and Privacy," a widely cited work. ``Are T-shirts in the same category as newspapers or in the same category as jeans?" In other words, are they blank canvases for self-expression (e.g. ``I love New York," or ``Stop Snitchin"' ) or are they merely branded commodities? McCarthy, who tends to favor a strong right of publicity, nonetheless believes that they're the former.
And a T-shirt isn't the only place where commercial appropriation and creative expression get tangled. Take bobblehead dolls. In 2004, California Governor Arnold Schwarzenegger sued a Democratic lobbyist named John Edgell for marketing a ``Governator" bobblehead: Schwarzenegger in a business suit brandishing a machine gun.
After settling last year, Edgell now has a new-and presumably more transformative-bobblehead out of Schwarzenegger, in a pink dress and pumps, still with his machine gun.
Drake Bennett is the staff writer for Ideas. E-mail firstname.lastname@example.org.